House Ditches Spy Bill's Telecom Immunity Provision

The House has passed the Restore Act, a Foreign Intelligence Surveillance Act extension that does not include immunity for telecom firms that were involved with secret wiretapping programs. However, President Bush is expected to veto the bill. The Senate Judiciary Committee also approved a version of the extension without an immunity provision.

By Keith Regan
Nov 16, 2007 3:01 PM PT

The U.S. House of Representatives has passed an extension of the Foreign Intelligence Surveillance Act (FISA), stripping out a key provision that provided legal immunity to telecommunications companies that cooperated with secret wiretapping programs.

The move sets up a showdown with the White House, as President Bush has vowed to veto the bill -- known as the "Restore Act," short for the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007 -- if it reached his desk without the immunity provision intact.

The Senate Judiciary Committee also approved a version of the FISA extension without an immunity provision. The version approved by the House also further regulates domestic spying activity, by limiting the use of wiretaps without warrants to cases when all the parties involved in the communications are known to be outside the U.S.

The Bush administration has sought an update of FISA -- first passed in the wake of the Sept. 11, 2001, terrorist attacks on the U.S. -- that included a retroactive grant of immunity to phone companies that along with an explosively controversial wiretapping program carried out by the National Security Agency (NSA).

Such a provision would essentially kill a number of lawsuits pending against AT&T, Verizon and others who civil liberties groups claim violated federal law by giving the NSA access to phone records and switching stations.

Still Maneuvering

There is still a version of the legislation in the U.S. Senate that has the legal protection for the phone carriers in place. That version was backed by the Senate Select Committee on Intelligence last month. More recently, the Senate Judiciary Committee backed a Senate bill that strips the protections.

"The full Senate will yet need to resolve the immunity issue," said Sen. Patrick J. Leahy of Vermont, a Democrat who chairs the Judiciary Committee.

The highest-profile lawsuit to date is the suit brought by the Electronic Frontier Foundation (EFF) on behalf of AT&T customers after revelations that NSA operatives were allowed access to the phone company's switching stations.

While the Bush administration is citing the inevitable need to dismiss the cases because keeping state secrets could be revealed if they go to trial, a federal judge has already ruled the EFF case can continue, setting aside many security arguments, said EFF staff attorney Kevin Bankston.

The EFF is pleased with the lawmakers' recent votes, Bankston told the E-Commerce Times. However, it recognizes that "the fight isn't over yet," he noted.

"We recognize the need to continue to work with Congress to make sure a bill emerges that allows the American people to have their day in court," he said.

An appeals court is now considering the government's appeal of the ruling allowing that case to continue. Although that case is nearly two years old, the process itself remains in the earliest stages, Bankston noted, with AT&T yet to file a response to the original complaint.

Oversight at Issue

The Bush administration wanted the Restore Act to extend the surveillance provisions of laws first passed in the wake of Sept. 11, including the ability for security agencies to obtain wiretaps of individuals overseas without the oversight of the FISA court.

The Restore Act would roll back some of the authority granted as recently as August, when Congress passed the Protect America Act. That legislation was meant to be temporary and expires in February unless additional action is taken.

Civil liberties and privacy groups, including the American Civil Liberties Union and the Electronic Privacy Information Center (EPIC), have argued that even the compromise bills being mulled in the Senate give security agencies too much power to conduct broad surveillance programs without ample justification.

"Based on what we know has happened to date, there is reason to believe that more oversight is far preferable to less oversight of surveillance activities of the U.S. government," Marc Rotenberg, executive director of EPIC, told the E-Commerce Times.

EPIC is also opposed to the immunity provisions, saying they would amount to overriding long-standing privacy laws. "That would send a terrible message to the American public," he added.

Additional wrangling is likely to ensue before the bill is reconciled by the Senate. A proposal being floated Thursday by Pennsylvania Republican Sen. Arlen Specter would have the federal government step into the shoes of the carriers who have been sued. That provision is viewed warily by many lawmakers because it would essentially put taxpayers on the hook for any damages awarded as a result of the suits.